Davies v Perpetual Trustees Executors and Agency Company of Tasmania Limited Plantiff and [1935] HCA 26

604 HIGH COURT [1935

{HIGH COURT OF AUSTRALIA.)

DAVIES ' é F : . : . APPELLANT Drrenpant,

AND

THE PERPETUAL TRUSTEES EXECUTORS) AND AGENCY COMPANY OF TASMANTA ;Responve! LIMITED AND ANOTHER PuantirF AND DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF TASMANIA.

H.C. or A. Will—Construction—Gift of income for "maintenance education and benefit" of

1935. daughter until she attain twenty-one—Gift of income to daughter for life on attain- — aa ing majority—Balance of income accumulated during daughter's minority— 'MELBOURNE,

Daughter entitled thereto. May 2,3.

Peetaaes The testator directed his trustee to apply the income from a fund for the Dison, Evatt" maintenance education and benefit " of his daughter until she should attain ws. twenty-one, and thereafter to pay her the income for life, with a gift over of the capital after her death. The trustees applied the income for the mainten- ance, education and benefit of the daughter until she attained twenty-one,

and at that time had an accumulated balance of interest in their hands.

Held that the daughter was entitled to the accumulated balance of interest which the trustees had received during her minority.

Decision of the Supreme Court of Tasmania (Crisp J.) reversed.

AppraL from the Supreme Court of Tasmania.

By his will the testator, Charles Reginald Davies, appointed the Perpetual Trustees Executors and Agency Co. of Tasmania Ltd. as trustee and executor of his estate, and after bequeathing certain

52 C.LR.] OF AUSTRALIA.

articles of personal estate gave and devised all his real estate and the residue of his personal estate to the company upon trust to sell and to hold the proceeds upon trust in the first place to pay his funeral and testamentary expenses and a legacy of £10. The testator then directed the company to divide the balance of the net proceeds of sale into two equal parts which he called " the first part" and "the second part." He directed the first part to be invested and the income therefrom to be paid to his widow for life, and after her leath he directed that the first part should fall into and form part of the second part. He then directed the company to invest the second part "and to pay and apply the interest or income to be from time to time received in respect thereof to or for the intenance education and benefit" of his daughter, Patricia Sarah Davies, "until she shall attain the age of twenty-one years with power to my trustees at their absolute discretion to pay the said interest or income" to his widow "to be applied by her as last aforesaid without liability to account and from and after the date on which my said daughter shall attain the age of twenty-one years I direct the company to pay the income of the second part to my daughter the said Patricia Sarah Davies for and during the term of her life," with a disposition over of the second part after her death. The testator died on 14th January 1925 leaving him surviving . his widow, Edith Davies, and his daughter, Patricia Sarah Davies, "who attained the age of twenty-one on 13th January 1935.